Citation NR: 9631146
Decision Date: 10/30/96 Archive Date: 11/08/96
DOCKET NO. 88-50 112 ) DATE
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RECONSIDERATION )
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On appeal from the
Department of Veterans Affairs Regional Office in Providence,
Rhode Island
THE ISSUE
Entitlement to service connection for a skin disorder, an
intestinal disorder, a kidney disorder, diabetes mellitus,
and pancreatitis, claimed as being due to exposure to Agent
Orange.
REPRESENTATION
Appellant represented by: Military Order of the Purple
Heart
WITNESS AT HEARING ON APPEAL
The appellant
ATTORNEY FOR THE BOARD
Jeffrey A. Pisaro, Counsel
INTRODUCTION
The veteran had active service from May 1968 to December
1969. This appeal arises from rating decisions of the
Providence, Rhode Island, Regional Office (RO). The Board of
Veterans’ Appeals (Board) entered a decision in September
1987 denying the veteran’s claim for entitlement to service
connection for skin, intestinal and kidney disorders,
pancreatitis and diabetes mellitus. It was held that the
veteran’s disorder was not attributable to service or to
exposure to Agent Orange. A Motion for Reconsideration of
that decision was filed with the Board in September 1988.
Reconsideration of the prior decision was ordered in February
1989. The case was remanded by the Board to the RO in
October 1989 for due process reasons. In July 1996, a
hearing was held in Washington, D.C. before Steven L. Cohn,
who is a member of the Reconsideration Panel. The veteran
contends, in essence, that these disorders are either due to
service or to exposure to Agent Orange. During the hearing
the veteran contends that his file was twice as thick as it
is now and he felt there were missing records.
REMAND
In June 1982, the Social Security Administration (SSA) mailed
to the veteran a copy of a decision which granted him
disability benefits; however, the medical records upon which
that decision was based have not been obtained. Masors v.
Derwinski, 2 Vet.App. 181 (1992) mandates that VA must obtain
the a SSA decision which grants disability benefits and the
medical records upon which it was based.
VA has a duty to assist the veteran in the development of
facts pertinent to his claim. 38 U.S.C.A. § 5107(a); 38
C.F.R. § 3.103(a). The United States Court of Veterans
Appeals (Court) has held that the duty to assist includes
obtaining available records which are relevant to the
claimant’s appeal. The duty to assist is neither optional
nor discretionary. Littke v. Derwinski, 1 Vet.App. 90
(1990). During the July 1996 hearing and in a July 1996
written submission, the veteran contended that some medical
records were missing from the claims folder. Comparing the
existing record with a review of the Board’s September 1987
decision and a list of missing evidence submitted by the
veteran in July 1996, fails to substantiate the veteran’s
allegation. Conversely, the veteran’s list of missing
records included July 1973 and November 1977 treatment
records from Josselyn Clinic in Boston. These records have
not been obtained. Of record is a February 1986 RO letter to
the veteran which requested executed authorizations from the
veteran for three private facilities to include Josselyn
Clinic. Authorizations and medical records from two of the
named facilities are of record; however, an authorization for
Josselyn Clinic was not received. Accordingly, upon receipt
of an executed authorization from the veteran, the RO should
attempt to obtain records from Josselyn Clinic, as well as
any other medical records specified by the veteran.
Accordingly, for the reasons stated above, the case is
REMANDED to the RO for the following actions:
1. The RO should contact the SSA and
obtain legible copies of the medical
records upon which the June 1982 SSA
decision which granted disability
benefits to the veteran was based. Once
obtained, all records must be associated
with the claims file.
2. The RO should contact the veteran and
obtain the names and addresses of all
health care providers where he has
received treatment for the disabilities
at issue since separation from service.
Thereafter, following the submission of
executed authorization forms, the RO
should obtain legible copies of all
treatment records which have not already
been obtained to include those from
Josselyn Clinic from July 1973 and
November 1977.
3. When the above actions have been
completed, the case should be
readjudicated by the RO. If any further
development is felt necessary, it should
be accomplished. If the decision remains
adverse to the veteran in any way, he and
his representative should be provided
with a supplemental statement of the case
and afforded a reasonable opportunity to
respond.
Thereafter, subject to requisite appellate procedures, the
case should be returned to the Board for further appellate
review, if appropriate. The veteran need take no further
action until he is notified by the RO. The purpose of this
REMAND is to obtain additional information and no inference
should be drawn as to the final disposition of this appeal.
M. CHEEK GORDON SHUFELT
Member, Board of Veterans’ Appeals Member, Board of Veterans’
Appeals
N. R. ROBIN
Member, Board of Veterans' Appeals
CHARLES W. SYMANSKI J. E. DAY
Member, Board of Veterans’ Appeals Member, Board of Veterans’
Appeals
STEVEN L. COHN
Member, Board of Veterans' Appeals
(CONTINUED ON NEXT PAGE)
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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